DECISION OF THE TRAFFIC COMMISSIONER

WELSH TRAFFIC AREA

OPERATOR LICENCE OG1027317

WEST ONE EXPRESS LIMITED

OPERATOR LICENCE OG1093316

WEST ONE OVERNIGHT LIMITED

GOODS VEHICLES (LICENSING OF OPERATORS) ACT 1995 (“The Act”)

West One Express Limited. Adverse findings are made under Section 27 (1) (a)
and Schedule 3 of the Act as the holder of the licence no longer satisfies the
requirement to be of good repute; and, under Section 27 (1) (b) and Schedule 3
of the Act as the holder of the licence no longer satisfies the requirement to be
of appropriate financial standing. The operator’s licence is revoked with
immediate effect.
West One Overnight Limited. The applicant has failed to satisfy the
requirement to be of good repute under Section 13 (3) (a) and Schedule 3 of
the Act. Accordingly, the application for an operators licence is refused. The
interim licence granted on 8 February 2010 is revoked as a result of the lack of
repute. The revocation of the interim licence will not take effect immediately to
afford an opportunity to arrange a smooth close down of the business. The
revocation will take effect on 15 July 2010 at 0001 hours.
Jason Arthur Hamer is disqualified from holding or applying for an operator’s
licence in all traffic areas (as an individual, partner, director or person with a
controlling interest in the company holding an operators licence or its holding
company) for a period of two years from the date of revocation of the licence,
Section 28 of the Transport Act 1985 (as amended).

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Background
1. Jason Arthur Hamer (“Jason Hamer”), sole director of two companies, attended a
public inquiry at Cardiff Magistrates Court on 24 May 2010. West One Express
Limited (the “old” company) had been granted a standard international licence in
2004 with authority for 60 vehicles and 60 trailers. This “old” company went into
administration on 8 January 2010 with debts of circa £1.471 million. West One
Overnight Limited (the “new” company) applied for a standard international licence
with authority for 50 vehicles and 50 trailers; this was amended at the hearing to 25
vehicles and 25 trailers. An application had been made for an interim licence for the
new company but it had been refused. On receipt of further information, detailed
below, an interim licence was granted on 8 February 2010 for 25 vehicles and 25
trailers.

2. Jason Hamer attended the public inquiry with his solicitor Mr Tim Culpin of Aaron
& Partners LLP, solicitors.

3. I made it clear at the commencement of the hearing that finances for the new
company had been produced in accordance with the Senior Traffic Commissioner’s
Practice Direction. Furthermore, issues in the call up letter relating to vehicle
maintenance and other routine matters concerning the running of a transport
operation were such that they would not in themselves have necessarily resulted in a
public inquiry. All maintenance failures are unacceptable, but in terms of scale and
proportionality, they would not in themselves have necessarily resulted in a public
inquiry in this case. Written submissions produced prior to the hearing included a
number of assurances together with undertakings which were to be placed on any
licence granted. I made it clear that the key issue in the public inquiry was that
relating to repute. The undertakings and assurances would, in the ordinary course of
events be sufficient to address maintenance and other related issues. It is for this
reason that they are not referred to in this written decision. For the avoidance of
doubt, adverse findings are not made in relation to any of those matters as I ensured
that the hearing addressed the key point of concern, namely that of repute.

Grant of interim licence

4. On receiving an electronic submission from the Office of the Traffic Commissioner
(“OTC”) in Leeds which indicated that there was concern as to a forged operator’s
licence and a suspicion of trading without the authority of an interim, I refused an
application for an interim licence. On 5 February 2010 I was sitting in Birmingham
dealing with other public inquiries. Between cases I was approached by one of the
clerks and given a copy of an email with a renewed application for an interim licence.
The clerk posed questions on my behalf to the solicitor for the applicant who, in turn,
asked questions of his client. These were relayed back to me and I asked that a full
note of the conversations with the clerk were recorded in the call up papers. The
written submission asking me to re-consider the application for an interim licence
indicated that the company had believed that it could continue to operate under the
old licence pending the grant of its application, but was now aware that this was not
the case. It went on to indicate that failure to grant an interim at that stage would
result in redundancies of 63 employees together with a significant financial loss to
the director who had made a substantial personal guarantee. I still had concerns in
view of the suggestion of there being a forged licence document and the clerk spoke
to Mr Culpin, solicitor who, in turn, spoke to his client. The clerk told me that the
operator had indicated that he had created the forged document to show to the

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people he was sub-contracted to, to show that he held a licence. He added that the
operator had done this as he was “backed into a corner” and did not want the
business to close down and his employees to lose their jobs. I was under the
impression that the use of a forged document had been limited to that relating to
sub-contracting, and not for other purposes. I wrote on the paper copy of the email
given to me that I granted interim authority for 25 vehicles and 25 trailers but that this
was without prejudice to the merits of the case which I would deal with at the full
public inquiry. I also asked the clerk to write up detailed notes of the various
conversations which he had so that they could form part of the call up brief. For the
avoidance of doubt, I was aware that there were serious questions to be asked as to
repute; but I also understood that without the immediate authority of an interim
licence, a substantial number of people would lose their livelihoods and the business
would fold. It was specifically put to me that if the interim licence was not granted at
that time that there would be no point in having the public inquiry as there would be
no business in existence at the scheduled hearing.

Evidence
5. Paperwork was sent to me prior to the hearing by solicitors for the applicant with
a summary of the issues and evidence, together with initial submissions. Prior to the
hearing I also received formal statements from Jason Hamer, which he adopted.

6. Jason Hamer confirmed the accuracy of the written submissions sent to me, this
included confirmation as to some work which had been outsourced. Written
submissions went into some detail as to the financial background and to behaviour
by Jason Hamer. At paragraph 6.25 of the written submission Jason Hamer
confirmed that he forged a licence document to provide to the bank and also
provided a copy to the Pallet Network Limited to secure the company’s continued
membership of that organisation. When questioned by me on this at the public
inquiry, Jason Hamer indicated that he produced the forged document for the
administrator who, in turn, advised the bank that he held an operator’s licence.
Finances with the bank were subject to acceptance within 30 days and if the offer
was not taken up within that period, another arrangement would be required.

7. At Paragraph 6.27 it was submitted to me, that the error of judgement on Jason
Hamer’s behalf was a one off and was not how he usually conducted his affairs.

8. Later, at paragraph 6.30 of the written submissions to me it was said that

following the appointment of administrators, “a limited amount of mainly international
work was outsourced”. Copy invoices were produced. At the public inquiry when I
questioned Jason Hamer about the work which was outsourced, he admitted that
some work would be outsourced whether or not he held an operator’s licence and
that even if a full licence was granted, all of the work shown in the invoices in the
bundle would still have been given to other operators. In other words, for
commercial reasons he would have outsourced this work, irrespective of whether or
not he held an operator’s licence.

9. Following questioning by me Jason Hamer admitted that he knew from the outset
that he did not have authority to trade without an interim licence, but choose to do
so. His explanation was that he wanted to retain his employees and he felt under
tremendous pressure. He accepted that he both knew that he did not have authority;

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further, he was told on several occasions that he should not operate without the
authority of a licence.

10. Copy correspondence with Leeds OTC form part of the call up papers; this
included a response to a question from Leeds OTC confirming that the old company
was in financial difficulties; this information had not been volunteered with the
application for the new licence. The bundle also confirmed that on 31 December
2009 there was an email from Leeds OTC indicating that Jason Hamer did not have
authority to operate without an interim licence. Furthermore, standard
correspondence from Leeds relating to the application for the interim licence made it
clear that there was no authority to operate unless and until an interim had been
granted. This included both the acknowledgement of the application for an interim
licence and the later refusal of the interim licence.

Materials considerations and findings

11. I am aware of the standard and burden of proof and of the guidance issued by
the higher courts including the Transport Tribunal (now the Administrative Appeals
Upper Chamber). I have had the opportunity of re-reading my notes of evidence and
the very full papers attached to the public inquiry brief, including submissions from
the applicant.

12. I accept that Jason Hamer felt under pressure in that he wanted to keep his 63
employees in work. I also accept that he personally lost a substantial sum as
director of the old company. On the other hand I note that he is an intelligent and
articulate individual who made a conscious decision to forge an operator’s licence
and to use it with a view to misleading the administrator, the bank and the Pallet
Network as to his status as an operator.

13. Upon reading the totality of the evidence including my notes of the verbal
evidence given to me at the hearing, it is clear that Jason Hamer knew from the
outset that he should not have been operating without an interim licence. Jason
Hamer’s instructions to his solicitor to effect that at one stage he believed he could
continue to operate under the old licence pending the grant of the application for the
new licence, was incorrect. I conclude that this was an attempt to mislead in the
same way that there was a less than full admission as to the scale of the use of the
forged licence.

14. I must give some credit to Jason Hamer for admitting readily that he was the
individual who forged the licence. As I reflect on the evidence it is clear that it would
have been patently obvious to any competent objective tribunal that it was Jason
Hamer who had forged the licence and used it with intent to deceive others including
the administrator, the bank and the Pallet Network. For this reason any credit must
be limited.

15. I take note that the call up papers for the hearing asked the operator for tangible
evidence of outsourcing during the period until the grant of the interim licence.
Details of outsourcing were provided to me but on questioning by me, it was evident
that this was work that would have been outsourced in any event, whether or not the
applicant had an operator’s licence. The fact that the written submissions did not
make it clear that this outsourcing would have been given to other companies in any
event, does not assist Jason Hamer when considering his repute and integrity.

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16. There are both verbal and written references to Jason Hamer having his back to
the wall and making commercial decisions to retain his business and keep his
employees in work. I reflect that other operators comply with the regulatory regime.
They do not forge document with intent to deceive; they do not knowingly operate
without the authority of an interim licence; and, they do not attempt to suggest that
they have outsourced work where it is clear that this would have been done whether
or not a licence had been granted.

17. Whilst I have sympathy with the 63 employees of Jason Hamer’s company, it is
Jason Hamer himself who has acted in a manner to put their employment at risk.
This public inquiry is not about road safety, it is about the need for a level playing
field and for operators to comply with the licensing regime which exists. Operator
licensing is based on trust and Jason Hamer has breached that trust by his actions
which have been dishonest.

18. There are potentially two contradictory Court of Appeal cases relating to the
extent to which a decision can be punitive. I note that in the published guidance
produced by the President of the Transport Tribunal (now the Administrative Appeals
Upper Chamber) it makes it clear that the Court of Sessions decision in Thomas
Muir (Haulage) Limited v the Secretary of State for the Environment, Transport and
Regions (1998) Scott CS13 is to be preferred as it was a decision of a full five judge
court. In particular the Scottish appeal court case was not referred to a later three
judge Court of Appeal hearing where a contrary decision was made on the point.

19. The punitive element of my decision relates to revocation and, in particular, to

the disqualification period. I am aware of cases involving both deceiving traffic
commissioners, and additionally, use of forged licences. Specifically, David Lloyd
2006/313; Mark Anthony Browne t/a Brownes Transport H46 1996; George Gollop
and Another 2002/9; and KDL European & Kevin Lumsden 2007/459.

20. I consider that in the interest of creating a level playing field for operators, those
who forge operator licences must not only expect to lose their repute, they ought to
have an expectation of being the subject of a personal disqualification. In this case
the forged document was used to deceive a number of people; it was not a single
isolated incident. Jason Hamer flagrantly ignored the requirement to have an interim
licence before undertaking haulage work.

21. The fact that Jason Hamer promptly admitted that he undertook the forgery and
the fact that it would have been obvious that he undertook it, allows me to make the
disqualification period a slightly shorter one than would otherwise be the case.
Accordingly, the disqualification is for a period of two years from the date of the
revocation taking effect.

22. Submissions from Jason Hamer’s solicitor asked that if the licence was to be
refused and the interim revoked that there be a period of time to allow for a smooth
closure of business. I agree to this on the sole basis that there are no major road
safety issues in this case. Accordingly, the licence is revoked with effect from 15
July 2010 at 0001 hours.

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Decision
23. The operator’s licence for West One Express Limited is revoked with immediate
effect as the operator no longer satisfies the requirement to be of good repute under
Section 27 (1) (a) and Schedule 3 of the Act; and, further, as the holder of the
licence no longer satisfies the requirement to be of appropriate financial standing
under Section 27 (1) (b) and Schedule 3 of the Act.

24. The application for an operator’s licence for West One Overnight Limited is
refused as the operator has failed to satisfy the requirement to be of good repute
under Section 13 (3) (a) and Schedule 3 of the Act. The lack of repute necessitates
that the interim licence be revoked, although I allow it to continue until 15 July 2010
at 0001 hours to facilitate a smooth close down of business.

25. Jason Hamer is disqualified from holding or applying for an operator’s licence in
all traffic areas (as an individual, partner, director or person with a controlling interest
in the company holding an operator’s licence or its holding company) for a period of
two years from the date of revocation of the interim licence, Section 28 of the
Transport Act 1985 (as amended).

Other matters
26. This is a bad case where an operator forged an operator’s licence and set out to
deceive. He has operated without an operator’s licence knowing that he needed
one. I granted an interim licence as I wanted to test the evidence before coming to a
final decision, knowing that refusal of an interim would result in closure of the
business and 63 people being out of work. Had the full evidence I heard at the
public inquiry been available earlier then I may not have been minded to grant an
interim licence.

Nick Jones
Comisiynydd Traffig dros Ardal Drafnidiaeth Cymru
Traffic Commissioner for the Welsh Traffic Area

21 June 2010

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